Article 3 and the extradition of a British national to Taiwan

The Supreme Court in the case of the Lord Advocate (representing the Taiwanese Judicial Authorities) (Appellant) v Dean (Respondent) (Scotland)[2017] UKSC 44 considered the first occasion on which Taiwan has sought to extradite a British national.

On appeal from the Appeal Court of the High Court of Justiciary (‘the Appeal Court’) the Supreme Court considered the correct test for Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘the ECHR’) within extradition cases and, in doing so, it reviewed the prison conditions that may reach the Article 3 threshold.

This case may extend beyond extradition cases and could be useful guidance for other cases including asylum.

The events leading to Mr Dean’s extradition

Mr Dean was born in Manchester and grew up in Edinburgh before moving to Taiwan where he lived and worked for about 19 years. On 25 March 2010 he was involved in a road traffic accident which, while driving under the influence of alcohol, killed a motorcyclist. Though Mr Dean did not stop nor did he report the accident, he was later apprehended and convicted to imprisonment for 2 years and 6 months.

He appealed this decision to the Supreme Court of Taiwan and, while appealing, successfully secured bail. While on bail he fled Taiwan and returned to Scotland. Notwithstanding his absence, the Supreme Court of Taiwan confirmed his conviction and the extradition process commenced.

Extradition and Article 3

The underlying question is whether his extradition to serve the residue of a prison sentence in Taiwan would be compatible with his rights under Article 3 of the ECHR which provides:

‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’

Mr Dean was successful at the Appeal Court when, on 23 September 2016, it decided to quash an order for the extradition based on Article 3. But, unfortunately for Mr Dean, the Appeal Court applied the wrong legal test when doing so.

The correct Article 3 test

The Supreme Court examined the legalities of the extradition but, for the purposes of this blog post, it is not relevant and so I will not go through it. The extradition order was made on 01 August 2014 while Mr Dean was remanded in custody having been previously apprehended in Scotland.

In applying Article 3 in Mr Dean’s case the Supreme Court reminding the Appeal Court of the correct legal test:

A person asserting a breach of this article must show that there are substantial grounds for believing that he faces a real risk of being subjected to treatment contrary to article 3 if he is extradited: Saadi v Italy (above), para 125.

Therefore, the expulsion itself will breach Article 3 if there is a real risk in the receiving country. That real risk could however be negated by the receiving state giving assurances on how they intend to prevent or reduce the real risk.

The Supreme Court said that, while regard should be made to those assurances, they should not be taken at face value and the court should question whether those assurances can be relied on. In doing so the general situation in receiving country and their respect for human rights must be taken into account.

Because the Taiwanese authorities gave assurances to mitigate the Article 3 risk the Supreme Court went on to review whether those assurances can be relied upon. The Supreme Court accepted the Appeal Court’s findings concerning problems within the Taiwanese prison system. Those problems included over-crowding and under-staffing. The prison systems, including sanitary, were also so inadequate that it exacerbated the discomfort caused by over-crowding.

All these issues gave rise to uncontrolled bullying of weaker prisoners, which had consequences to Mr Dean. The Supreme Court accepted evidence that Mr Dean would be at particular risk of hostility due to the special treatment which would be afforded to him as part of the assurances given by the Taiwanese authorities.

It was against these findings of risk that the undertaking by the Taiwanese authorities was assessed by the Supreme Court.

Should Mr Dean be extradited?

The Supreme Court held that, although there remains a strong public interest in promoting and maintaining the rule of law by means of extradition, that strong public interest, while carrying great weight, has no paramountcy in the face of an Article 3 challenge. The question in Mr Dean’s case was whether the assurances given could negate the Article 3 risk.

The Taiwanese authorities agreed to separate Mr Dean from other prisoners by accommodating him in a separate larger cell with only one other equally at risk prisoner. They would continue to separate him from group activities with other prisoners if that is necessary for his safety. They also agreed to provide UK consular staff access to Mr Dean in prison to ensure ongoing monitoring of his safety and, if consular staff raise any issues, agreed to remedy any such breach.

The Supreme Court held that the assurances were so detailed and specific to Mr Dean, with checks and balances in place via UK consular staff, that he could no longer demonstrate a real real. There was also nothing to suggest that the Taiwanese authorities would fail to prevent third parties from harming Mr Dean. Therefore, the assurances were sufficient to mitigate any Article 3 risks.

Confinement and Article 3

Given that the assurances required some element of segregation and confinement, the Supreme Court went on to decide whether this treatment would risk a breach of Article 3.

In Mr Dean’s case the court was not concerned with complete sensory isolation and total social isolation which the European Court of Human Rights has recognised as constituting a form of inhuman treatment. But the Convention looks beyond such isolation, to other forms such as ‘relative isolation’ as considered in the case of Ahmad v United Kingdom(2012) 56 EHRR 1 at paras 207-210:

207. Other forms of solitary confinement which fall short of complete sensory isolation may violate article 3. Solitary confinement is one of the most serious measures which can be imposed within a prison and, as the Committee for the Prevention of Torture has stated, all forms of solitary confinement without appropriate mental and physical stimulation are likely, in the long term, to have damaging effects, resulting in deterioration of mental faculties and social abilities. Indeed, as the Committee’s most recent report makes clear, the damaging effect of solitary confinement can be immediate and increases the longer the measure lasts and the more indeterminate it is.

208. At the same time, however, the Court has found that the prohibition of contact with other prisoners for security, disciplinary or protective reasons does not itself amount to inhuman treatment or punishment. In many states parties to the Convention more stringent security measures, which are intended to prevent the risk of escape, attack or disturbance of the prison community, exist for dangerous prisoners.

209. Thus, whilst prolonged removal from association with others is undesirable, whether such a measure falls within the ambit of article 3 of the Convention depends on the particular conditions, the stringency of the measure, its duration, the objective pursued and its effects on the person concerned.

210. In applying these criteria, the Court has never laid down precise rules governing the operation of solitary confinement. For example, it has never specified a period of time, beyond which solitary confinement will attain the minimum level of severity required for article 3. The Court has, however, emphasised that solitary confinement, even in cases entailing relative isolation, cannot be imposed on a prisoner indefinitely.

In Mr Dean’s case the court considered his isolation will be minimal because he will share his cell with another non-violent foreign prisoner and will have access to newspapers, radio and television. There will also be opportunities for people to visit him. That relative isolation will not be imposed on him by the prison authorities but will be at his option.

The Supreme Court, in summarising other decisions concerning solitary confinement, decided that the circumstances of Mr Dean’s possible ‘relative isolation’ would not come close to a breach of Article 3 and do not contribute significantly to his assertion of such a breach when other circumstances are considered.

Usefulness in other cases

This decision could provide useful guidance in Article 3 issues in other cases including asylum matters.

The court considered levels of isolation and how those levels could trigger Article 3. The court also took a view that overcrowding and under-staffing presented a possible Article 3 breach had it not been for specific assurances of the Taiwanese authorities. The court also highlighted the minimum ratio of medical staff to prisoners, at less than 1 doctor per 350 prisoners, could breach Article 3 but the evidence in this case demonstrated that prisoners can access medical treatment on an ad-hoc basis. The fact that prisoners have to pay for non-emergency medical and dental treatment and also for non-generic drugs was considered of little significance to the Article 3 question.

The absence of an international system by which prison conditions in Taiwan are monitored and the absence of an established route within the Taiwanese courts whereby a prisoner can seek a remedy in respect of prison conditions may also support an Article 3 claim. In Mr Dean’s case however, the specific assurances given, outweighed the absence of these avenues for redress.

While Mr Dean was unsuccessful, if another individual suffered similar treatment in their country of origin before claiming asylum in the UK or there is a real risk they would face such treatment, including individuals facing convictions of criminal sentences on return, than an Article 3 claim is arguable if no protective measures are in place.

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Christopher Desira has been practicing immigration law for twelve years, he is the director and founder of Seraphus. He is a practicing Solicitor, and a qualified Immigration and Asylum Accredited Senior Caseworker and Supervisor. Prior to Seraphus he was the head of the immigration department at Lawrence Lupin Solicitors. He has also worked at several charities including Bail for Immigration Detainees, the Joint Council for the Welfare of Immigrants, and Freedom from Torture.

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